Dalrymple v Morocho

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Dalrymple v Morocho 2022 NY Slip Op 33793(U) January 6, 2022 Supreme Court, Kings County Docket Number: Index No. 522691/18 Judge: Wavny Toussaint Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 522691/2018 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/10/2022 At an IAS Term, Part 70 of the Supreme Court of the State of Kew York~ held in and for the County of Kings, at the Cqurthou8e} at Civic Center, Brooklyh: New York, on the dav. of Januarv, 2022. 6tlr . PRESENT: HON. WA VNY TOUSSAf NT, Justice. - - - ~ . - • - - - - - - - - - - ~ - - • - - - - - • - - , - •• - -X \VOODY DALRYfvlPI.E, Plaintiff, Index No. 522691 / 18 - against - Molion Sequence 3 ROMAN I'vfoROCHO AND AGGRE0ATF, & CErvtr.NT lRUCJ-:.!NG, LLC, De fondants. - - • - • - - - - - • - - - - - ~ - - • - - - ~. - • - - - - - • - -X NYSCEi~ Doc >Jos. The fo llO\VinE! e-ri.lccl,.paper~ read herein: N" otice or Motion/Order to Show Cau~e/ Petition:'Cross Motion and Affidavits (Affirmations) Annexed._ _ _ _ _ _ _ _ __ Opposing Affidavits (A ffi.nnations) ____________ Reply At1idavih (Afthmationsj _____________ 46-54 58 -66 70-72 Other (Letters from Counsel)~S'--"u:..:...r•-=-r.::.icp;a.=l=ie=s_ _ _ _ _ _ _ __ 73. 74 Up-oo the foregotng e-filcd papers, defendant AggrC!gate & Cement Trucking~ LLC (hcrcinal1er Aggregate) moves for an order pursuant ro CPLR *32] 1 (a) (5) dismissing p lainliff s com plaint on the basis that it is time-barred under CP LR § 214 ( 5) (Seq 003 ). Plaintiff opposes this motion. Background Facts and Procedural History This i~ a (av. su i( for personal injuries alfogeuly sustained by the plaintiff as a result 1 of a motor vehicle accident that occurred on September 23, 2016 at approximately 10:00 [* 1] 1 of 9 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 INDEX NO. 522691/2018 RECEIVED NYSCEF: 01/10/2022 a.m. on Irving A venue, at or near i1s intersection with Willoughby A vernle, Brooklyn, Ne\v Yor-k.. Plaintiff, v,..,1 oody Dalrymple (pbintift). ;:1llcges tlrnt immediately prior to his accjdcnt, he was proceeding by bicycle in the marked bi eye le lane on rrving A venue, approaching lhe jntcrsection \Vith Willoughby A venue. According to th~ plajntiff, a large truc;k ro[lcd past the ~tap sign an WiHQ\.tg,hby A~1emi~, caut\ng pla~ntiff \.() believe that,\ was. not going to stop. In an attempt to avoid a colJision with ihe truck~ the pluintiff moved to the right. causing h1m to com<le with the vehicle bcirig operated by defendant Roman \1orocho. The plaintiff ,vas knocked off his bicycle and sustained injuri~s. It is undisputed thai the driver of the dry-bulk lunkertruck did not leave his personal identifying information wjth plaintiff or Mo roe ho, however, th<; reason for not doin~ so is disputed by plaintiff and ACT as set forth below. On ~ovcm be-r 9, 2018, piuintiff commenced the instunt action by the filing of a summons and verified complaint againsl Morocho and defendants, -~John Doe)) and Cowan Systems, LLC (hereinafter Cmvan), Th~ C(nn.plaint alleges lhat Cowan \vai lh'! cw-mer and "John Doe)' was the operator of tl1e trnck in question. On April 2.9~ 2019, defendant Morocho moved for summary judgment, ..=1llcgjng defendant had no liability for the happening of the accident. By order duted October 9, 2019, this court granted defendant's motion, as the opposition suhmitted was insufficient ,is a matter of la\v. defendants. The action was severed and was contjnucd against the remaining On Scptem ber 18, 2020, plaintiff filed u motion, seeking to amend the 2 [* 2] 2 of 9 INDEX NO. 522691/2018 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/10/2022 compJaint "to name a previously unideniified- party, sued as John Doe. PJaintiff alleges that the identity of the owner or lhe truck involved was determined immediately prjor to rnuking the application to amend. Pursuant to Mder dated December 30, 2020, the plaintiff's motion was granted, and an amended complaint \vas filed. The amended c-on1plaint adds Aggregate as a de fondant and removes Cowan Systems LLC and John Doe as defendants. On March 1, 202 l, Agg.rcgak filed its v~rified an~wer asserting the affi.rmatlvc ddensc tl'..M the acticn '-'3 time-barre,J beca\)SC it was not commenced ..,,,,.:itbh·, \ht=: appUcah!e three-year statute of limitations pursuant to CPLR § 2 l 4 (5). Mot ion to Dismiss : Aggregate no,..v moves to dismi~s plaintiffs complajnt, pursuant to CPLR § 321 I (a) (5), on the grounds that the action is untimely, as the subject accident occurred on September 23, 2016~ the statute of limitation~ expired on September 23, 2019 and action against it was not commenced t.mtiJ December 30, 2020. ln oppc.sh,on to the mmion, plaintiff contends that Aggregate should be cstopped from asserting the statute of Jimitations as a defense because the operator of the 1nic.;k fled the scene of the crash making it difficult to identify Aggregate as the proper defendant. In support, plaintiff proffer_'j survcillanc~ video from a nearby school which, according to plaintiff, depicts the Aggregate truck driver franticaJly making muhiple «cuts'' as it tries to extricate itself from the crash 5cene and nee before police arrive. In addition, plajntiff proffers his own affidavit attesting to his rec0Hection that, after the crash, the tmck and car J [* 3] 3 of 9 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 INDEX NO. 522691/2018 RECEIVED NYSCEF: 01/10/2022 driv~rs had un argument over who was responsible for t!w crash. hut that neither driver spoke to him, nor did the truck driver identify himself (NYSCEF Doc. No. 59, 1J 4). Instead, that the truck driver maneuvered the truck to complete his left tum onto lrving and left the scene (id. ut fi 5). Plainti rrs couns~ 1 also conknds that he made diligent effort, to identify the truck inch1ding 1nst1tut1ng a plenary action} pur::mant to CT'LR. § 3 l 02 (c), to obtain ,l copy of the school surveillance video, Woody Dabymple v The City ofNew Yark, et. al., Kings County Supreme Court Index ~o. 158458/2016. That the video, hov,.ever, \Vas grajny making it hard h} idenHfy the tnlek. Bctw-een the \ 1\U'¢O and p\·'1intiff' :s. l1mhed n::coHec:tilm, plaintiffs counsel staks that it w{ls believed that .i !ogo matching that of Cowan was on lhe true k. Further, p Ja inti ff' c ou nsc I slat es that ex ten s.i ve in temet scare h1; s were cond uded b&ed on the video as well as p~rsonal vi"its to sar1d and cancret.e -plan.l" in Brooklyn. and Queens fonowing a ~uggcstion by Cowan\, general counsel i-egarding the lype of tru.c:k seen in the vid co. Then, on Septcmher 15, 2020, plaintiff's counsd reprcsenl.s that, by pure happc-nstancc. he saw a dry-bulk tanker trnck closely resembling the vehicle seen in the surveiHancc v1deo and, consequently, believed lhe correct operator of the dry-bulk truck to be Aggregate. Accordingly, the September l 5, 2020 sjghting of the Aggregate truck was the first tjmc Aggregate could be identjfied as the truck in valved in the accjdcnt. Three days later: on Seµt~n'lh-.:-r l &, 2020, plaint~Jf \Wvved for le-a.ve. 'to amentl the cornplaint and 4 [* 4] 4 of 9 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 INDEX NO. 522691/2018 RECEIVED NYSCEF: 01/10/2022 a<ld Aggregate as a defendant in lieu or John Doe and Cowan. Said motion was subsequently granted by order of this court <lated December 1! , 2020. In n:ply Aggregate proffers the affidavit of Pablo Sunchcz (Sanchcz.L a r,;Qmmcrcia1 truck driver for Aggrcgak, \Vho attests to operating a motor vehicle on Wi llOlJghby A venue approaching its intersection ,vith Irving /\ venue when he witnessed an incident between a. bicycJist and an SUV on lrving. /\. venue on Sep1..embcr 23, 2016 (NYSCE}. Doc. Ko. 71) ~ 2). Sanchez srntcs that he remained at the scene for an extended period of time an<l ~poke with the responding police officers who told him to leave since they did not consider him to be involved (id_ al, •· 3) 4), Sanche·l further ~lates. that he n~vc,r pre:p3red a company incider1t report regarding Dalrymple's accident because he was only a witness and did not cause the accident or nee the sc~ne (id at 1 1 5, 6). Aggregate also proffers the police accident report~ contend~ng that it cori;Qoorn..tes Sanchez'~ aflidavit. That the p<,lii;,:.e rcpot1 reflects that responding officers as.signed number 14 to plaintiff, which corresponds in the key to pedes.tri.an/bicycUstlotber pcdcstriun crror/c.::onfusion as an appurent contributing factor to the incident. And tb.at the res.ponding po Ece ,,ffice~!'l di.d not as~ign any contributing factor to the incident to anyone else which is consistent \vith Sunchez' s statcnwnt that the police did not consider him to be involved. Finuily, Aggreg,atc also contends that a review of the s.ur'l,,eillance \,ideo profferoo hy plaintiff confirms th<.1t Sanche,. travck:d slowly, cuine to a complete stop prior to the intersection, and reina incd ut the accident scene for over 10 minutes , Defendant points 5 [* 5] 5 of 9 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 INDEX NO. 522691/2018 RECEIVED NYSCEF: 01/10/2022 out that the surveil iunce video submjtted by plajntjff has a hreak in footage from 1he 10 :05 minute mark to the l 0:45 minute mark. Thus. that said vjdco cannot be relied upon in determining h.ow long Sanchez remained at the scene, \vhethcr he spoke with the police und was told by the poEce to leave, or whether he fled the scene as argued by plaintiff. In response, plaintiff submits a Jetter in sur-~pJy, contending that Aggrcgate 's reply contrauicts 1\s answ~ by acknowleag1ng for the first time that its vehicle and ddver \v1;re involved in the subject incident. P'taintiff contends that lVc should be given \he opportunity to depose Sanchez to determine ,:vhethcr s~nchcz in fact com plied with Vehicle and Traffl c La-..v (YTL) § 600 (2) (a) or, as plaintiff contends and the video shows, Sanchez fled the sc.:enc \V1lhout providing his and his employer's identification and insurance information to either plaintjff or the police. According to pfojntjff: the video shows that Sanchez was on[y out of hi~ trnck fbr approximaldy orte and a hulf minutes. hardly tirrie to share his information with the two other parties involved jn the crash or speak with poUcc as c;laimed. Further, thal the vi<l~o does not show tnc presence of a police officer or pohce vehicle, and tmt, Ln any event, Sanchez. stlll ha~ a duty \lrnler YTL § 600 (2> (a)\() specifk-a.Hy idcnfrfy himseJf to Morocho anJ Dalrympk, which he did not do. Objecting to plaintiff's submi-;sion of a sur-reply, Aggregate submits a ?etter arguing lhut plaintiff is not cnti tled to submit a sur-reply, as Sanche7. 's <lffidavit docs not constitute ntw evidence because it was submitted in repJy to plaintiffs affidavit and th~ surv~i!lunce video. [* 6] 6 of 9 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 INDEX NO. 522691/2018 RECEIVED NYSCEF: 01/10/2022 Discussion As a preliminary matter, the court will consider plaintiff5 sur-repJy ,1s it addresses ne\V, responsive evidence profl~red by Aggregate in jts reply (see Matrer of Kennelly v J1ohius Rmlry Ho/dinr;s LLC. 33 AD3d 380, 3 8 I -82 [ l sl Dept 2006) [finding that an opportunity for a sur•reply elin1 inatcs any prejudice \.Vhere the court considers a ciaim or evidence offered for the first time in replyJ). ••Jo dismiss a cause of action pur.s,uant io CPLR 321 I (a) (5) on thi; ground that il is barred by the applicable statute of Jimitations, a defendant bears the initial burden of dw1onstrating, prim a facie, that the tjme wjthin ·which to commence the action has expired'' (US Bank ,VA. v Gordon, 158 AD3 d 832, 834-835 [_ 2d Dept 20 l 8J [internal quotation marks omitted]). Herc, Aggregate established~ prim a facjc_. that the three-year statute 0f limitations had expired prior to the filing of this action against jr_ Thus, the burden shifted -~to the pJaintiff to raise a question of fact as to whether the statute of limitations is toJkd or js otherwi.":>e inapplicab!e)' (Collin.)' Bros. Moving COip. v Pierleoni, 155 ADJd 601, 603 [2d Dept 201 7] ). In New York, a defcn<lant may be estopped from intcrpos ing a statute of limitations dcfonse where the defendant's affirmative wrongdoing ,:produced the Iong dday betwe~n the uccrual of the cause of action and the jnsiitution of the lega1 proceeding" (General Sh:ncils v Chiappa, 18 NY2d 125, 128 [I 9661). Applying equitable estoppeI to prevent a defendant from asserting the statute or limitations is rooted jn the principle that ,:no man 7 [* 7] 7 of 9 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 INDEX NO. 522691/2018 RECEIVED NYSCEF: 01/10/2022 may take advantage of his own wrong" Ud., citing Gt u:r ,._, Brooklyn Eastern Term. , 359 VS 231. 132-2)3 f19591). Generatly, "equitable estoppel wi H app) y where ptaintiff ,vas induced by fraud. misrcpi-:f!sentation '..'Ir deception to rdra,n from tiHng, ·d timdy actfr,n" (Lumpan() v Quinn, 6 NY3d 666. 674 f.20061 (quoting Simcu~ki v Saeli, 44 ~Y2d 442,449, 377 :-iE2<l 713,406 J\-YS2d 259 [1978]). The pJaintiff must demonstrate rea;(lonablc reliance on the defendant's misrepresentations (id). Moreover', a plaintiff must show subseq_uent and specific actions by <lefwdants aimed to c:onccal the former tort which somehow prevented plainliff from tjmely bringing Sllit (id). The instant action docs not present a situation where plaintiff was IuJled into inactivity or a false sense of sec:urity by Aggregatc's fraud or misreprescntution. Rather} pJaindff timely commenced suit but failed to timely name the coJTect defondani, a faUure that pJaintiff attributes to Sanchez fleeing the scene of the accident. \Vhile: there is no case proffored by plaintiff applying equitable estoppeJ to similar factual circumstances,. the court finds th.at leaving the scene or a motor vehicle acddent that he or she is involved in, which is a V)Dlation of VTL § 600 (2) (a),l amounts to an act of corn;:eahnent that could pre dude l Vd1idc and Traffic Law§ 600 t2) (a) provides, In pertTn.eut part, that "[a]ny person operat[ng a motor vehicle who, knowing or having cau:Sie to kn(.)w thac persona! cnj!.lry has been caused to anothL;"r persr.la., due to at\ lt\cident \r\YOl°11tri.g t~e \'lY.)lm -ve\'i.ide opcTa\ed by s'L~Ch pcrs,m shall. b~fore leaving the place "vhcr~ the said personal injury occurred, stop, exhibit his Hcense ~nd in:swance ider1tification card .. , give hi!-i name. residence .. , and (ot!ler enumcraled·1 information ... to the injured party. if practical, antl .ilso to a police officer .. __ ,- [* 8] 8 of 9 INDEX NO. 522691/2018 FILED: KINGS COUNTY CLERK 01/10/2022 10:02 AM NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/10/2022 d statute of lin1ilJti0ns defense (c.f Sherrill v Pettiford, 172 A02d 512: 513 ~holding tha.t {l party who foi\s to wmpiy with YTL l2d Ueµt l '191 \ g 505 (5), whkh requires that every motor vehicle licensee notify the Commissioner of Motor Vehicles of any change t)f residence within 10 days of the occurrence of the char1ge, will be cstopped from challenging the propriety of s~rvice made to the fonnei: address 1). The \· i<l '-:.\) pm ffered by pia ~ntiff does n 01 co nd usi vci y establish that Aggregate' s truck was involved in the subject accident or whether Sanchez left the scene before police could arrive} as contended by plaintiff, or whether Sane he:.-:: v,raited for the pol ice to and \Vlls told to leave. JrriVL: as represented hy Sancho:. Consequently, the is~~ of whethf;!T A.ggre,g..ate, sho~itd be es topped from asserting the ~tatnk of )1mitations as a defense involves a factual dispute requiring a triaJ (see General Stencih v Chiappa: 1S NY2d at 128; ser: also 1Hat!fr nf:3pewack, 203 A.lJ2d 133, 134 [lsl Dept l 994J fcilatjons omitted]). Conclusion ORD"Jt~RED that defendam Aggregate:s morion to dismiss pJaintiff's complaint as tim e-barre<l is denied. Th JS constitutes the dec:ision and order of the coun. ENT ER, J. S. C. ·ficiN. WA VNY TOUSSAINT ,.. . ..... .., ...., - .,... I [* 9] • ,. V •~~ I . J· ~~ 01I 't.'".,.~J ~'.J\J f' • ,,~"J !.,y:..o..., 9 of 9

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